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Defence lawyers argue judge erred in Willie Pickton trial, seek new trial

BY LORI CULBERT, VANCOUVER SUN
January 1, 2010

When Robert (Willie) Pickton's judge changed his instructions to the jury at the trial's 11th-hour, it potentially resulted in jurors being able to convict the former pig butcherer of acts that are not even criminal, his defence lawyers argue.

In an argument recently filed with the Supreme Court of Canada, Pickton's lawyers Gil McKinnon and Patrick McGowan say a chain of events sparked by a question by the jury resulted in the Crown urging the judge to change the rules of the game just before the buzzer sounded. Instead of deliberating whether to agree with the Crown's long-held theory that Pickton alone murdered six women, the defence argued, Justice James Williams told the jurors they could find him guilty if they believed he "actively participated" in the murders.

That, the defence argued in the written document, may have left jurors with the impression they could convict Pickton if, for example, they believed he merely drove the women from the Downtown Eastside to his farm, where someone else might have killed them.

"Put simply, the jury's critical question was incorrectly answered, the 'goal posts' were changed by the amendment at a very late and impermissible stage of the trial, and the Crown gained a significant, unjustified advantage," McKinnon and McGowan argue in the 64-page document.

"There was a real risk that the jury convicted Pickton for indirect acts upon which they were not properly instructed, which the defence did not have an opportunity to address, and which might even fall outside the ambit of criminal liability."

It was on Day 6 of deliberations, following a year-long trial in 2007, that the jury asked the judge if they could find Pickton guilty of murder if they believed he had "indirectly" taken part in one or more of the six murders. Williams did not ask the jurors to clarify their confusing question.

Despite objections by the defence, Williams (urged by the Crown) altered a previous instruction that jurors must believe Pickton shot the women, and instead said they could find him guilty of murder if they concluded he "actively participated" in the deaths.

McKinnon and McGowan argue in the appeal document this was a "miscarriage of justice" because the defence was never given an opportunity to respond to this change in direction.

"The Crown persuaded the trial judge to insert an 'escape hatch' into the main charge, resulting in a stunning, tactical advantage that was clearly wrong. If the jury had a reasonable doubt about whether or not Pickton shot any of the women, they could now consider an alternate actus reus [criminal act] to convict," the document says.

"Trial fairness is at the heart of this appeal. No matter how heinous the crime, an accused has a constitutional right to a fair trial."

Two days after asking the question, the jury acquitted Pickton of first-degree murder but found him guilty of second-degree murder in the deaths of Sereena Abotsway, Marnie Frey, Andrea Joesbury, Georgina Papin, Mona Wilson, and Brenda Wolfe. The defence is seeking the convictions be quashed and a new trial be ordered. The Crown has until March 5 to respond to the defence documents.

During arguments before the B.C. Court of Appeal in early 2009, the Crown argued it had not changed the playing field and a majority of the three justices agreed. One dissenting justice disagreed, paving the way for the defence to make this appeal before the Supreme Court of Canada, which will be heard March 25.

If Pickton's appeal is successful, the Crown has said any new trial should proceed on all 26 counts of first-degree murder he is facing; if the defence is unsuccessful, the Crown intends to stay the remaining 20 murder charges against Pickton as he is already serving a life sentence with no chance of parole for 25 years.

Many of the 20 additional family members are devastated that Pickton may never be tried in court for their loved ones' deaths.

Most of the families of the original six victims are dreading the thought of re-living another long, painful trial.

In October, police recommended the Crown charge Pickton with six new charges of first-degree murder, potentially bringing the number of murder counts he could face to 32. While the Crown maintained during the trial that Pickton acted alone, luring the women from the Downtown Eastside to his farm where killed them and butchered their bodies in his slaughterhouse, the defence had argued Pickton's farm "was a bee-hive of activity" and that other persons - such as his friends Dinah Taylor and Pat Casanova - could have killed the women.

The Supreme Court of Canada decided in late November to allow Pickton's defence lawyers to broaden their appeal when they appear before the court in March, beyond the issues arising from the 2-1 decision of the B.C. Court of Appeal.

lculbert@vancouversun.com

 

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Updated: August 21, 2016